Walter A. Wood Mowing & Reaping Machine Co. v. Gaertner

Sherwood, J. This action was brought to recover the contract price of a twine self-binding harvester, under an order of which-the following is a copy: “Walter A. Wood Mowing & Rearing Machine Co., 80 Taylor Street, Chicago, Ill. I hereby order one Walter A. Wood Twine Self-binding-Harvester, 5 feet 6 inches cut, to be delivered atPetersburgb, Mich., care of O. H. Russell, on or before J uly 15,1883, for-which I agree to pay you the sum of $78 in Junior Reaper, and in manner as follows: The balance, $147 cash, with • freight from Petersburgh, on or before September 25, ’83,. with interest at 7 per- cent, per annum from the date of delivery of machine or commencement of harvest. If paid on or before maturity no interest to be paid. Warranty. This -machine is warranted to be well made.. ■of good materials, and with proper management capable of cutting and binding in a workmanlike manner, doing the-binding at least as well as is usually done' by hand. The-purchaser shall be allowed one. day’s use to give the machine a fair trial, and if it should not work well immediate written-notice must be given to the agent from whom it was purchased, and reasonable time allowed to get to it and remedy the defects, if any (the purchaser rendering necessary and, friendly assistance), when, if it cannot be made to do good work, it shall be returned to the place where received free of charge, and the payments of money or notes will be-refunded. Failure to give notice as above shall be deemed -conclusive evidence that the machine fills the warranty,, whether it is kept in use or not. [Signed] Fred. Gaertner, Purchaser.” The declaration was special upon this instrument, with-the common counts added. Plea, general issue. The case-was tried before the court without a jury, and under special findings of fact and law judgment was rendered against the defendant for the sum mentioned in the order, and interest. The case comes before us on error, the record containing apparently all the testimony and the findings of the circuit [455] judge. It is unnecessary for us to consider the findings further than to ascertain what judgment was rendered. The court held upon the trial in admitting the testimony that no agreement made or understanding had between the parties at the time the order was given, could be shown, upon the ground that it would be varying the terms of the written contract. This ruling might very easily prevent showing the entire failure of the consideration upon which the order was given for the machine, and thereby defeat the very contract which was made for its purchase and which constitutes the ground of defense in the'case. The law will not tolerate such injustice. In this case the defendant proposed to prove that it was a part of the consideration for which the order was given, that this plaintiff should, at the time of the delivery of the property ordered by defendant, furnish a man to set up the machine and make it work in the manner prescribed in the order. This the court refused to permit, and the defendant excepted. This was error. Defendant also proposed to show that it was the custom of the company, on all sales of such machines by plaintiff, to furnish such a man and do such work. This was also refused by the court. We think this was error. If such was the fact it constituted a part of the contract, and a correct understanding of the same could hardly be obtained without that condition in some way appearing. The above facts were proposed to be proved in connection with the fact that the company failed to perform its agreement in that regal'd. We think the case falls within the rule laid down by this Court in Phelps v. Whitaker 37 Mich. 72, and in Weiden v. Woodruff 38 Mich. 130. The judgment must be reversed and a new trial granted. Campbell and Champlin, JJ. concurred. Cooley, C. J. concurred in the result.